Dlugolecka v Todber Pty Ltd t-as Leisure Lea Gardens Retirement Village

LEGISLATION CITED: Industrial Relations Act 1996 ss 187, 191, 197, 371

Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Austin v NF Importers Pty Ltd (2005) 146 IR 113 Bilal (t/as Hornsby Medical Centre) v Marshall (2006) 158 IR 269 Box Valley Pty Ltd v Price (2000) 97 IR 484 Butlers Hire Pty Ltd v Collison (No 2) (2007) 169 IR 44 Caltex Petroleum Pty Ltd and Others v Harmer (1999) 92 IR 264 De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 CASES CITED: Faber v Greyhound & Harness Racing Regulatory Authority of New South Wales (2007) 166 IR 122 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Palimex & Co Pty Ltd v Joanne Rodriguez [2007] NSWIRComm 269 Perrott v XcelleNet Australia Ltd and Others (1998) 84 IR 255 Raymond John Carlin v Access Elevators Australia Pty Ltd [2008] NSWIRComm 69 SSWAHS v Kim (2007) 168 IR 43 Strathfield Group Ltd v Hall (2002) 121 IR 158 Yetzotis v New South Wales (Commissioner of Corrective Services) (2005) 147 IR 50

HEARING DATES: 3 June 2008 EXTEMPORE JUDGMENT DATE: 3 June 2008

APPELLANT: Mr A G Rogers of counsel SOLICITORS: Fitzpatrick Solicitors LEGAL REPRESENTATIVES: RESPONDENT: Mr P Newall of counsel SOLICITORS: UBK Lawyers

RENATA DLUGOLECKA v TODBER PTY LTD T/AS LEISURE LEA GARDENS RETIREMENT VILLAGE

Application by Renata Dlugolecka for leave to appeal and appeal against a decision of Chief Industrial Magistrate Hart in Matter No. CIM124113/05

JUDGMENT OF THE COURT EX-TEMPORE [2008] NSWIRComm 113

1 Ms Renata Dlugolecka seeks leave to appeal and appeals from a decision of the Chief Industrial Magistrate, given on 22 November 2007, dismissing her claim that she had been underpaid wages due, under the Nurses Other than in Hospitals (State) Award ('the Nurses Award'). Ms Dlugolecka claimed that she had been employed to perform duties which were those of an assistant in nursing, covered by that award. Ms Dlugolecka had been paid by the respondent as a personal carer, in accordance with the provisions of the Charitable Sector Aged and Disability Care Services (State) Award ('the Aged and Disability Care Award'). His Honour concluded that the evidence did not establish that the Nurses Award applied to the work performed by Ms Dlugolecka. The appeal challenges his Honour's conclusions on the evidence. 2 The respondent opposed leave to appeal being granted. Its case was that not only had the appellant brought the appeal under the wrong provisions of the Industrial Relations Act 1996 ('the Act'), namely under s 187, instead of s 197, it had not addressed the question of leave in its written submissions. In this case leave would not be granted, because the appeal only challenged the Chief Industrial Magistrate's factual findings in relation to the evidence as to the duties of one employee; it raised no issue of principle or law; and it had no wider implications, or practical application. 3 It was further argued that in cross examination, Ms Dlugolecka's evidence had put beyond doubt that the Nurses Award did not apply to her employment, for two reasons. Firstly, because she had conceded that she was not 'principally employed' in performing the work which she claimed was work of an assistant in nursing. Further, it was never claimed that Ms Dlugolecka had performed such work 'under the supervision of a registered nurse', as the Nurses Award required and there was no evidence that such supervision had occurred. 4 In the circumstances, we grant the appellant leave to amend the notice of appeal, to refer to s 197 of the Act. 5 We also raised a further issue with the parties, which neither of them had raised on appeal, namely, the requirements of s 371 of the Act, a matter dealt with in the Chief Industrial Magistrate's reasons for decision at [47] to [49]:

47. On the first occasion that this matter came on for hearing before the Court I reminded counsel for the parties that this Court has a statutory obligation under section 371 of the Act to use its best endeavours to bring the parties to an amicable settlement of the matters in dispute. At that time, the response I received from Mr Rogers, of Counsel for the applicant, was to the effect that there had already been some considerable efforts to reach resolution in the matter and these had been totally unsuccessful. The opening provided to the Court by Mr Rogers, and also by Mr Newell made clear that the applicant was not prepared to move from an assertion that the Nurses Other Than In Hospitals (State) Award was the relevant governing award, whilst the respondent was equally adamant that the Nurses Award had no application. I embarked upon a hearing of the evidence in circumstances where I had satisfied myself that in the absence of a finding in relation to award coverage, there was no prospect of the parties reaching amicable settlement in the matter.

48. However, now that I have reached such a finding it seems appropriate that the parties renew their efforts to resolve any outstanding matters between them utilising, if necessary, the assistance of the Court in this regard. It is my intention not to make any final orders in this matter until such time as I have satisfied myself that the Court's best endeavours in this regard have been exercised. Future Programming

49. The matter will be listed for mention in the near future for the purpose of programming any section 371 conference that may be required, and to invite the parties to report to the Court in relation to any progress that has been reached in relation to final settlement of the matter and the preparation of any consent orders which may have been agreed upon by the parties.

6 Given those observations and a recent line of authority in this Court in relation to the requirement to adhere to the provisions of s 371 of the Act, before a matter is heard by an industrial court, we asked the parties to address us on the question of whether any issue as to compliance with the requirements of s 371 of the Act, arose in this case. 7 Consequently, at the hearing of the appeal, the parties advised that the Chief Industrial Magistrate had returned to the question of conciliation under s 371, after giving his 'reasons for decision' in November 2007, when the matter was relisted on 21 December 2007. The parties then informed his Honour that there had been discussions, but no agreement had been reached. Final orders were made, after the respondent had announced its position as to settlement, in open Court, and that position was not accepted by the appellant. Consideration 8 It is necessary to observe that on appeal, there were a number of difficulties occasioned by the way in which the proceedings were conducted below. While the claim advanced was for underpayment of wages, during a period from July 2000 to June 2004, and the contest joined by the parties was over which of two competing awards applied to this employment, the relevant awards were not tendered by the parties. 9 While the parties advanced their written submissions on appeal, by reference to various provisions of the two awards, the two awards were not in the appeal book and thus were not before this appeal bench. It appears from what the parties informed us, that some award documents were provided to the Chief Industrial Magistrate. What documents, it was, that reference was made to in the proceedings below, was not however, apparent from the record of the proceedings. 10 This was not a mere technicality, it might be observed, given that s 191 of the Act provides: 191 Nature of appeal (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received.

11 The parties also did not agree about whether the requirements of s 371 of the Act had been attended to by his Honour. The section required that: 371 Conciliation to be attempted before order made (1) The industrial court is not to make an order under this Part until it has brought, or has used its best endeavours to bring, the parties to the application for the order to a settlement acceptable to those parties. (2) If such a settlement is made, the industrial court is required to make an order that, to the extent authorised by this Act, gives effect to the terms of the settlement. 12 The transcript of the proceedings recorded the following exchange, when the two day hearing commenced on 28 August 2006:

HIS HONOUR: This matter is listed for a two-day hearing. Have the parties had some useful discussions?

ROGERS: I'm not sure what useful means, your Honour. We've had some discussions.

HIS HONOUR: Diligent, appropriate discussions; counsel exercising their appropriate skill and explaining to their clients why they should look seriously at any possible settlement of the matter.

ROGERS: I think it might have been done over a lengthy period and I don't think the matter is likely to settle, your Honour. Perhaps as the evidence emerges it might.

HIS HONOUR: You know I have a statutory obligation to satisfy myself that there have been appropriate steps made.

ROGERS: I had forgotten your Honour did but I'm conscious that just about everyone does that.

ROGERS: Before I open, might I call upon a notice to produce, served upon the respondent, it's just a time and wage records, fundamentally, notice just to get over the hurdles of, if we otherwise make out our case, to do the proper deductions.

13 The question of any conciliation of the matter, was not referred to again at the hearing, before his Honour published his reasons for decision. The hearing proceeded, being adjourned on 29 August 2006, in order that written submissions could be prepared. The hearing concluded on 27 March 2007. The reasons were published in November 2007. The matter came back before his Honour on 21 December 2007, when his Honour again enquired as to whether a settlement had been reached. After having been advised that it had not and being advised by the respondent, in open Court, as to its attitude to the settlement, which the appellant did not accept, his Honour made final orders. 14 The appellant argued that what had transpired below, did not satisfy the requirements of s 371. The respondent argued that it did, particularly having in mind what occurred on 21 December, given that the section merely contemplated that conciliation occur 'before an order is made'. 15 We cannot agree with the respondent. In our view, the section contemplates a process of conciliation by an industrial court, before any hearing is embarked upon. Thereby parties' costs will be minimised, given the plain intent of the section, which is concerned with bringing parties to a settlement, as an alternative to a contested hearing. We accept that this does not preclude subsequent attempts at further conciliation, before an order is made, if that is an appropriate course, in the circumstances of a particular case. An attempt at conciliation, must, however, be made. 16 Repeated enquiries made of parties at a hearing, before final orders are made, as to whether their own discussions have resulted in an agreement being reached, cannot amount to an industrial court using 'its best endeavours' to bring the parties to a settlement. 17 It is of significant concern, to this Court, that this is but the latest in a series of appeals where the requirements of s 371 have not been observed in the proceedings below. The first of these was dealt with in Yetzotis v New South Wales (Commissioner of Corrective Services) (2005) 147 IR 50, a decision given on 23 September 2005. 18 That decision was followed in a number of subsequent cases - see Bilal (t/as Hornsby Medical Centre) v Marshall (2006) 158 IR 269; Faber v Greyhound & Harness Racing Regulatory Authority of New South Wales (2007) 166 IR 122; SSWAHS v Kim (2007) 168 IR 43; Palimex & Co Pty Ltd v Joanne Rodriguez [2007] NSWIRComm 269 and Butlers Hire Pty Ltd v Collison (No 2) (2007) 169 IR 44. In at least one further case, consent orders have been made by the Court, upholding an appeal where the requirements of s 371 of the Act have not been adhered to. The issue also arose in Raymond John Carlin v Access Elevators Australia Pty Ltd [2008] NSWIRComm 69, on an application for extension of time to appeal. 19 This Court has repeatedly observed that unless the legislature acts to amend s 371 of the Act, its requirements must be observed by industrial courts, of which the Chief Industrial Magistrate is one (see s 364). The repeated failure to act in accordance with this statutory requirement, has resulted in entirely avoidable cost consequences for litigants, including the parties to these proceedings. This raises obvious public interest considerations. 20 In those circumstances, this Court proposes to now draw its ongoing concerns to the attention of the Chief Magistrate. 21 As to the question of leave, we observe that in our view, apart from the failure to comply with the requirements of s 371 of the Act, this is a case where leave to appeal would not have been appropriate. 22 How leave is to be dealt with is well settled - it will never be lightly granted and not when the issues in the appeal have already been the subject of authoritative pronouncement, or when the issues raised on appeal were not argued at first instance. It must be shown that 'some issue of real significance in the interests of justice will need to be identified for such an application to succeed.' (See Austin v NF Importers Pty Ltd (2005) 146 IR 113 at [4].) If an appeal seeks, by and large, merely to challenge findings of fact or the exercise of a discretion, it will face a significant hurdle in obtaining leave. (See Box Valley Pty Ltd v Price (2000) 97 IR 484 at [4]. An appeal bench is ultimately concerned with correction of error. (See Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Perrott v XcelleNet Australia Ltd and Others (1998) 84 IR 255 at 265; De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 at 482; Caltex Petroleum Pty Ltd and Others v Harmer (1999) 92 IR 264; Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 and Strathfield Group Ltd v Hall (2002) 121 IR 158 at [45].) 23 While the appellant argued that it was a matter of the highest importance that a person receive the payment they were entitled to, under the correct industrial instrument, we are satisfied that this appeal does not raise issues which should lead to a grant of leave, other than in relation to s 371 of the Act. 24 In the circumstances, there is no option but to grant leave to appeal. Given the circumstances in which this order comes to be made, a failure to adhere to the requirements of s 371, it is appropriate that we exercise the discretion granted by s 197(4) of the Act, in referring the matter. There it is provided that:

(4) The Full Bench of the Commission in Court Session may refer a matter the subject of an appeal back to the Local Court with such directions or recommendations as it considers appropriate.

25 In the circumstances of this case, it would not be just to require that the matter effectively be reheard. In our view, to now refer the matter to another Magistrate for hearing, would only unnecessarily further increase the costs so far incurred by the parties. While the appellant argued that such a course would be a triumph of form over substance, if that were to be proven to be correct, it will be a regrettable consequence of the requirements of the legislative scheme and how the proceedings below were conducted. 26 We take the view, in the circumstances of this case, that if the matter cannot be resolved in conciliation, it ought to be determined on the evidence led at the trial below. There should be no rehearing, but the awards in question should either be formally tendered, or otherwise properly identified in the proceedings. 27 We are also satisfied that the circumstances of this appeal are such that no order as to costs should be made. Orders 28 For the reasons given, we make the following orders:

3. The matter is referred back to the Chief Industrial Magistrate's Court.

4. There will be no order as to the costs of the appeal.

5. The Chief Industrial Magistrate shall, prior to any hearing and determination of the proceedings, pursuant to s 371 of the Industrial Relations Act 1996, bring, or use his best endeavours to bring the parties to the proceedings to a settlement acceptable to those parties; and, if such a settlement is made, to make an order that, to the extent authorised by the Industrial Relations Act 1996, gives effect to the terms of the settlement.

6. If the conciliation in the Chief Industrial Magistrate's Court required by s 371 of the Industrial Relations Act 1996, does not result in a settlement acceptable to the parties, any contested hearing shall be determined on the basis of the evidence already given in the proceedings below before Chief Industrial Magistrate Hart, but the competing awards shall either be tendered or otherwise clearly identified in the record of the proceedings .

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